Top Five Immigration and Right to Work Disasters
At our recent breakfast seminar we took a look at the top five immigration and Right to Work disasters that we have come across in the recent past. Here we highlight lessons learnt.
1. When making Right to Work checks, do not make assumptions
Do not assume that because someone has a residence permit/visa, they have the right to work in the UK. Having valid leave to remain in the UK does not mean they have the right to work. Appreciate that you are looking not just at whether an individual has leave to remain in the UK in the form of a valid visa. You must also check that the visa permits them to work for your company in a particular role.
If hiring a student, a valid Tier 4 visa does not automatically mean they are entitled to work 20 hours a week during term time. Always check the detail, including the Remarks section. There are a growing number of students who are not given the standard 20 hours per week during term time stipulation. Many students studying below degree level, or who have a negative immigration history, are not permitted to work other than if their course requires some time working within an industry as part of it. In addition, if students are allowed to work in term time, make sure you obtain and keep evidence of precisely when term time is for that particular student.
If someone “forgets” to bring their right to work documents on their first day of work, do not assume they will be in order because they appear very “British”. Take a zero tolerance approach and do not allow them to start work until the right to work check has been completed.
Do not assume that the rules do not apply to senior employees. The Home Office still expects even very senior employees to play by the rules, comply with the law and make applications in time.
2. Beware of problems at the airport
People entering the UK can sometimes cause problems for themselves by answering questions from Border Control without appreciating the consequences. For example, someone entering on a Business Visit visa might tell Border Control they are here to work, something which a Business Visit visa does not permit them to do.
The individual therefore needs to understand the immigration category under which they are seeking to enter the UK. They need to be briefed so that they do not use the wrong terminology in answer to questions from Border Control. They also need to carry supporting documentation as evidence. For Business Visitors, this might include evidence of return tickets or bookings, of having cash and access to funds, of where they will stay and of whom they are coming to meet.
3. Issue the correct Certificates of Sponsorship and be careful on timing
There are two types of Sponsorship Certificates – Restricted and Unrestricted – and the employer must make sure it issues the correct one. Which Certificate the employer should obtain in respect of any worker depends on a variety of factors. Issuing the wrong certificate can have serious repercussions. If an employer issues an Unrestricted Certificate when it should have issued a Restricted Certificate, it risks losing its sponsorship licence altogether. The consequences are less dire if it wrongly issues a Restricted Certificate. In that case, the employer will need to withdraw the Restricted Certificate and issue an Unrestricted Certificate in its place.
Applications need to be timely. An application must be submitted online via the Sponsorship Management System by the 5th of the month. A decision is usually made by the 11th of the same month. Applying too late means that the application rolls over into the next month, with the decision being made by the 11th of that month. Getting it wrong can result in significant delays in the recruitment process and potential liabilities to the recruit if they have been told they can start work earlier than turns out to be the case.
Make sure you get the salary calculations right on the Certificate of Sponsorship. Check both the Home Office Code of Practice for Skilled Workers and the Tier 2 and Tier 5 Points Based System sponsor guidance. The Code of Practice tells you the minimum rate of pay and skill level for any job and the Sponsor guidance sets out the minimum salary thresholds per sponsored category. You must pay the higher of the two in order to show the migrant is being paid at the appropriate market rate.
4. Follow the Resident Labour Market Test to the letter
It is important to get the Resident Labour Market Test process correct.
When advertising the role, make sure you put the closing date for applications on the advert. Failure to do so invalidates the advert, meaning that the Restricted Certificate of Sponsorship will be refused and the role will have to be re-advertised correctly.
Do not agree a different salary with the migrant worker to the salary on the advert. If you pay a higher salary to the salary stated, you will have to repeat the Test. If you pay a lower salary and it is below the appropriate market rate you will have to stop sponsoring the migrant and report it on the Sponsorship Management System. This rule prevents sponsors hiring cheap labour by saying one thing on the Certificate of Sponsorship to get the visa and then paying less.
Make sure you take a screenshot of the full advert, including the skills, experience and qualifications required. Failure to do so renders the Test invalid as the sponsor cannot show that they asked for these requirements. They cannot therefore justify excluding any UK/EEA/ settled workers who apply but do not meet the requirements.
5. Hiring a new worker, getting the analysis wrong
When looking to hire a new Tier 2 migrant worker in the UK, take care to analyse their immigration status to assess whether it is possible or not.
On 6 April 2011 the Rules changed so that Tier 2 Intra-Company Transfer migrants can no longer switch into the Tier 2 (General) route after this cut-off date. The moment they leave the UK they are subject to a 12 month cooling off period before re-applying under the Tier 2 category, unless an exemption applies. For example, applying as a Tier 2 (General) high earner with earnings of at least £153,500 will enable you to bypass the cooling off requirement .
Therefore, before making a firm offer, check the migrant candidate’s immigration history. In particular, take a careful look at the date and type of Tier 2 grant. Ask about the migrant’s notice period so that you can work out the timings for changing their Sponsor. Ask if their current Sponsor has notified the Home Office about their employment termination date or if the Home Office has already curtailed (cancelled) their leave, as this will affect the application process to enable them to switch their immigration status from within the UK
It may be their particular grant of Tier 2 leave does not allow you to sponsor the migrant candidate immediately; so you may need to consider alternative options such as increasing their salary to the Tier 2 high earner threshold (of at least £153,500 gross per annum) OR transferring them to an overseas office for 12 months to allow the cooling-off period to run its course before returning them to the UK.
We hope you have found these useful. If you would like to discuss any of these issues further, please contact a member of the Business Immigration team: Owen Jones, Anita de Atouguia, Victoria Burnip, Mandeep Khroud or Chloe Harrold.
The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.